BIANCA WOFFORD AND SUZANN LENNOX, ON BEHALF OF THEMSELVES, AND ALL OTHERS SIMILARLY SITUATED,PLAINTIFFS,v.APPLE INC., A CALIFORNIA CORPORATION; AND DOES 1 THROUGH 100, INCLUSIVE,DEFENDANTS.

The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
DISMISS AND DENYING REQUEST FOR JUDICIAL NOTICE
[Doc. No. 33]

Before the Court is Defendant's motion to dismiss Plaintiffs' Second Amended Complaint ("SAC") for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). [Doc. No. 33]. Plaintiffs filed an opposition, [Doc. No. 42], and Defendant filed a reply, [Doc. No. 43]. Defendant also filed a request for judicial notice, [Doc. No. 33-4]. Based upon the parties moving papers and for the reasons discussed below, Defendant's Motion to Dismiss is GRANTED IN PART AND DENIED IN PART and Defendant's request for judicial notice is DENIED.

Factual Background

On or about November 12, 2010, Bianca Wofford and Suzann Lennox ("Plaintiffs") filed a class action lawsuit in the California Superior Court for the County of San Diego against Apple Inc. ("Defendant"). Plaintiffs alleged five causes of action: (1) violation of the Consumer Legal Remedies Act ("CLRA") (California Civil Code § 1750 et seq.); (2) violation of the Unfair Competition Law ("UCL") (Bus. & Prof. Code § 17200, et seq.); (3) false and deceptive advertising in violation of Bus. & Prof. Code §17500, et seq.; (4) tortious interference with contract; and (5) breach of implied/equitable contract. All causes of action relate to Defendant's release of a software upgrade, iOS 4.0, for its iPhone 3G and iPhone 3GS (collectively, "the iPhone") in June of 2010. On January 7, 2011, the Defendant removed the case to this Court pursuant to 28 U.S.C. § 1441(a) and § 1453.

On November 9, 2011, this Court granted Defendant's motion to dismiss Plaintiffs' First Amended Complaint ("FAC"). Plaintiffs' first and second causes of action were dismissed with prejudice [Doc. No. 16]. On December 8, 2012, Plaintiffs filed a SAC, re-alleging all five causes of action [Doc. No. 17]. On February 1, 2012, the Defendant filed a motion to dismiss Plaintiffs' SAC [Doc. No. 33]. The Plaintiffs filed an opposition to Defendant's motion to dismiss and Defendant has filed a reply. [Doc. Nos. 42 and 43].

Legal Standard

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a) (2009). A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed.R.Civ.P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir.2001). The court must accept all factual allegations pled in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337--38 (9th Cir.1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, ------ U.S. --------, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556).

However, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not Twombly, 550 U.S. at 555 (citation omitted). A court need not accept "legal conclusions" as true. Ashcroft v. Iqbal, ------ U.S. --------, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). In spite of the deference the court is bound to pay to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated the ... laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983).

Discussion

Defendant's Request for Judicial Notice Under Federal Rule of Evidence ("FRE") Rule 201, a Court may take judicial notice of any fact that is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). "A court shall take judicial notice if requested by a party and supplied with the necessary information." Fed. R. Evid. 201(d).

Defendant filed a request for judicial notice of a video recording of the April 8, 2010 Apple Special Event with Steve Jobs' keynote presentation on iPhone iOS 4.0. The Defendant requests judicial notice of the video because statements made by Mr. Jobs are referenced in the SAC. However, since the parties have differing interpretations of Mr. Jobs' statements, a reasonable factual dispute appears to exist. (SAC ¶ 73-75; Def ['s] Mot. to Dismiss p. 8-9). As such, the Defendant's request for judicial notice is hereby DENIED.

Plaintiffs' Claims for Violations of the Consumer Legal Remedies Act ("CLRA") (California Civil Code § 1750 et Seq.) And Unfair Competition Law ("UCL") (Bus. & Prof. Code § 17200 et seq.) Were Previously Dismissed with Prejudice Plaintiffs' first and second causes of action were previously dismissed without leave to amend [Doc. No. 8, p. 4:13,24]. Because Plaintiffs were not granted leave to re-allege these causes of action, Defendant's motion to dismiss Plaintiff's CLRA and UCL claims is GRANTED and these claims are DISMISSED WITH PREJUDICE. Plaintiffs are warned that any further inclusion of these claim in future amended pleading will result in the imposition of sanctions.

Plaintiffs' third cause of action is for false advertising in violation of California's False Advertising Law ("FAL"), Cal. Bus. & Prof. Code §§ 17500--17509. The FAL proscribes the dissemination of statements that are "untrue, misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading." Cal. Bus. & Prof. Code § 17500. "This provision has been 'interpreted broadly to embrace not only advertising which is false, but also advertising which although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.' " Inter--Mark USA, Inc. v. ...

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